EDWARD D. KAMBUGA AND ANOTHER v REPUBLIC 1990 TLR 84 (CA)

 

EDWARD D. KAMBUGA AND ANOTHER v REPUBLIC 1990 TLR 84 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Omar JJA and Mfalila JJA

1 August, 1990

Flynote

B Criminal Practice and Procedure - Bail - Offence committed under the Economic

and Organized Crime Control Act, 1984 - Whether bail may be granted under s.

148(5) Criminal Procedure Act, 1985.

C Criminal Practice and Procedure - Bail - To foreigner - Whether foreigners to be

treated differently.

-Headnote

Edward D. Kambuga and Wrong Teak Say, the appellants preferred this appeal after

the High Court had granted D bail to Kambuga on near impossible conditions and

refused to admit to bail Say on the ground that as foreigner he was likely to jump bail

and thus fail to attend his trial. In arriving at this decision the judge relied on sections

29 and 35 of the Economic and Organized Crime Control Act 1984 under which the

appellants were charged.

E Counsel for the appellants attacked the judge's ruling on the ground that the judge

should have applied section 29 in exclusion of section 35 because the latter provision

fetters the judge's powers to grant bail, and that it was improper for the judge to deny

the second appellant bail on the ground that he was a foreigner.

F Held: (i) The learned judge was correct in using the power to grant bail under

section 29 against the mandatory condition stipulated under section 35;

G (ii) as the procedure for granting bail is fully provided for in the Economic and

Organized Crime Control Act, 1984 the procedure under the Criminal Procedure Act,

1985 did not apply.

(iii) while foreigners should not be treated differently in our courts merely

because they are foreigners, we think H the High Court was entitled to take into

account past experience when deciding finally whether or not to grant bail;

(iv) in such cases the court must take into consideration the seriousness of the

case facing the foreigner, whether it is of such a nature that in the event of a

conviction, the stipulated penalty is so severe as to encourage escape from justice.

Case Information

I Appeal dismissed.

1990 TLR p85

MAKAME JJA, OMAR JJA AND MFALILA JJA

Maira, for the appellants. A

[zJDz]Judgment

Mfalila, Makame and Omar, JJ.A.: This appeal is against the Ruling of the High Court

at Dar es Salaam (Kyando, J.) granting bail to the first appellant Edward, D. Kambuga

on near impossible conditions under sections 29 and 35 of the Economic and

Organized Crime Control Act 1984 and refusing to admit to bail the second B

appellant Wrong Teak Say. Currently both appellants are charged before the Resident

Magistrate's court at Kisutu with two counts for offences under the Economic and

Organized Crime Control Act, henceforth to be referred to as the Act, but have not

yet been committed for trial. For this reason, and as the value of the property

involved is more C than ten million shillings, the power to hear and grant bail to the

appellants is vested only in the High Court. The High Court heard the appellants'

application for bail on 26/3/90. At that hearing, it was contended on behalf of the

appellants that the High Court should grant them bail under either section 148 (5) of

the Criminal Procedure Act or D section 29 of the Act both of which give unfettered

power to the High Court to grant bail. It was contended that section 35 of the Act

which fetters the power to grant bail was inapplicable because that section only refers

to "the court" which is the Economic Crimes Court. However the learned judge held

that as the procedure for granting bail E is fully provided for in the Act, the

procedure under the Criminal Procedure Act did not apply to the application before

him. This reasoning and conclusions by the learned judge is correct and is in line with

the view taken by this court in Criminal Appeal No.13 of 1989 Juma Athuman & 5

Others v Republic. F

The learned judge also held that his power to grant bail under section 29 was fettered

by section 35 and granted bail to the first appellant under conditions spelled out in

the section and refused bail to the second appellant on the ground that as a foreigner

he was more likely to flee the country and thus fail to attend his trial. Two grounds

were G filed by Mr. Maira in support of the appeal against this decision. The first

was in respect of the bail conditions imposed on the first appellant, that in an

application for bail under section 29 (4) (d) of the Act, the discretion of the court is

unfettered. The second ground related to the court's refusal to grant bail to the second

appellant on the basis of his being a foreigner. H

At the hearing of the appeal, Mr. Maira argued in support of the first ground that the

High Court should only have acted under section 29 of the Act without considering

section 35 which fetters the discretion of the court because the conditions stipulated

in that section are so onerous that they almost amount to a denial of bail and this

cannot be I the law, bail being a right which should only be taken away in

1990 TLR p86

A exceptional circumstances. Unfortunately for Mr. Maira, this happens to be the

law, and as conceded by him, this would dispose of his argument. We agree with Mr.

N.D who argued for the Republic that sections 29 and 35 serve different purposes.

Section 29 provides the power to grant bail in economic cases whereas section 35 lays

B down the extent to which that power should be exercised. The two sections should

therefore be read and applied in tandem as it were. They cannot be separated as

suggested by Mr. Maira. The learned judge was therefore correct in using the power

to grant bail under section 29 against the mandatory conditions stipulated under

section 35.

C On the second ground, Mr. Maira argued that there is no evidence that foreigners

generally jump bail and that therefore the High Court took a wrong view of previous

episodes as a justification for treating the second appellant differently.

D While we agree that foreigners should not be treated differently in our courts

merely because they are foreigners, we think the High Court was entitled to take into

account past experience when deciding finally whether or not to grant bail. In similar

past episodes involving foreigners, no conditions including the impounding of

passports proved sufficient to prevent the jumping of bail . However, in all such cases,

the court, as the learned judge did in this case, E must take into consideration the

seriousness of the case facing the foreigner, whether it is of such a nature that in the

event of a conviction, the stipulated penalty is so severe as to encourage escape from

justice. The learned judge F was of the view that this is such a case and there is no

reason which we can use to disagree with this assessment.

Appeal dismissed.

1990 TLR p86

G